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Marriage and Divorce 04.10.2023
Marriage and Divorce 04.10.2023
On
Marriage and divorce under Muslim Law
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Table of Contents
Introduction
Marriage under Muslim Law
Nature of marriage
Essentials of Muslim marriage
o Capacity to marry
o Offer and acceptance
o Consent of the parties
o Mehr
o No legal impediment
Absolute impediment
Relative impediments
Types of marriages
o Temporary marriage (Muta marriage)
Characteristics of muta marriage
o Permanent marriages
Sahih (valid) marriage
Batil (void) marriage
Fasid (irregular) marriage
Divorce under Muslim Law
o Divorce by husband
Talaq-ul-Sunnat
Talaq-ul-Biddat
Ila
Zihar
o Divorce by wife
Talaq-e-Tafweez
o Divorce by mutual consent
Khula
Mubarat
o Divorce by judicial decree under Muslim Dissolution of Marriage Act, 1939
Lian
Faskh
Changes brought by the Muslim Women (Protection Of Rights On Marriage) Act, 2019
Need for Uniform Civil Code (UCC)
Conclusion
References
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Introduction
The concept of marriage and divorce under Muslim law is developed through ancient perspectives
and from a historical point of view among Muslims. The source of development of these are personal
laws, which happen to be Quran (holy book of Muslim), Sunna (precedent), Ijma (consensus) and
Kiyas (analogical deductions), among these four sources Quran is the primary source. It is
considered to be so fundamental and sacred in the Muslim world that it is immutable according to
Muslims. Marriage is considered a civil contract under Muslim law, unlike sacrament under Hindu
law. It is necessary for the establishment of a family, which is considered a fundamental entity of
society. Under Muslim Law, marriage is only the halal or legal way for the intimate relationship
between men and women and legitimacy of children. It is a social necessity that regulates social life
through the creation of certain rights and duties which both the partners are required to fulfill.
In Pre-Islamic Arabia condition of women was very pitiable, they were seen as objects, polygamy,
buying and selling of women, temporary marriage for the fulfilment of lust, marrying two real sisters
simultaneously, freely divorcing wife etc. was prevalent. In short, people were unaccountable
towards women. It was only after the emergence of laws/rules made by Prophet Muhammad, in
Muslim society status of women became better, but certain patriarchal notions are still prevalent such
as polygamy and the notion that men are considered superior to women due to their masculinity and
intellectual superiority etc. These thoughts, customs, precedents, Ijtihad (independent individual
reasoning based on justice, equity and good conscience) and legislations have shaped the modern
Muslim Law of marriage and divorce.
Due to the division of Muslims into various sects and different schools, there are more than one
type/form of marriage accepted among Muslims. There are different types of marriages such as Muta
marriage, Sahih marriage, Batil marriage. Before entering into the union of marriage there are certain
essential conditions that must be fulfilled by both the prospective husband and the prospective wife,
such as the age of majority, consent of the parties, Mehr etc. As Muslim marriage is a civil contract
by nature, there must be an offer from one party and acceptance from another party. Divorce under
Muslim law is divided into different categories such as divorce my husband (Talaq-ul-Sunnat, Talaq-
ul-Biddat, Ila, Zihar), divorce by wife (Talaq-e-Tafweez), divorce by mutual consent (khula,
mubarat) and divorce by judicial decree under The Muslim Dissolution of Marriage Act, 1939 (lian,
fask).
Nature of marriage
The nature of marriage under Muslim law is the same as a civil contract. It is entered into by both the
parties by their free volition. In its formation it also takes the form of contract as there is offer and
acceptance between the parties, giving same right to husband and wife. But during the dissolution of
marriage, the husband is given more rights than the wife as they are considered superior to women
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due to the patriarchal notion that men are physically and intellectually superior to women. Though
generally marriage under Muslim law is considered a civil contract, some people also treat it as a
religious sacrament.
In the case of Abdul Kadir vs Salima, it was observed that the character of Muslim marriage is
similar to that of a civil contract, as like civil contract marriage under Muslim law requires of offer
(Ijab) from one side and acceptance (Qubul) from another side, which must be out of the free will,
without any coercion, undue influence and fraud on the part of both the parties. In case of both the
parties being minor, they have the right to either set aside or follow the terms of marriage. When they
become major, as it is in the case of a contract, unless and until it is opposed to public policy it is
right of the parties to enter into antenuptial/prenuptial agreement, though it is not socially acceptable
there is also a provision for breach of contract of marriage. However, there is a constant debate
regarding the nature of marriage, some consider it as purely a civil contract while others consider it
as a religious sacrament. Chief Justice Sir Shah Suleman, in the case of Anis Begum vs Muhammad
Istafa, gave a more balanced view about this unending debate by stating that marriage under Muslim
law is both civil contract and religious sacrament.
Mehr
It is a consideration payable to the wife during Muslim marriage, as a mark of respect to her from her
husband. Mehr is one of the fundamental criteria for the legitimacy of Muslim marriage.
No legal impediment
For the validity of marriage, there should not be any legal hindrance, some of which are the
following:
Absolute impediment
It renders marriage null and void.
Consanguinity
Prohibition to marry some of the blood relations, such as a male Muslim cannot marry his mother,
grandmother, daughter, granddaughter, niece, aunt or great-aunt (mother and father side both) and
sisters full, consanguine or uterine.
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Affinity
It prevents a man from marrying all relations of the woman with whom he married, such as once
wife’s mother, grandmother, grandmother’s mother, etc.
Fosterage
It prevents relationships with relations of a foster mother, such as foster grandmother, foster mother’s
daughter etc.
Relative impediments
These conditions render the marriage irregular; if irregularities are removed then the marriage
becomes valid.
Unlawful conjugation
A Muslim male cannot marry women who are related to each other by consanguinity, affinity or
fosterage, had they been the opposite gender it would have been unlawful marriage. If the first wife
dies, marriage with her ends, then he can marry another. In Sunni Law, unlawful conjugation is
merely irregular but under Sharia Law it is void.
Polygamy
Polygamy is allowed in Muslim law, but it is restricted to marrying four wives. Thus, one marries a
fifth woman while already having four wives, the marriage will be considered irregular and not void.
Marriage with Non-Muslim
Muslim women cannot marry non-Muslim (kitabiya), but under Sunni law, a Muslim man is allowed
to marry a Christian or Jew. However, under Shia Law marriage with a non-Muslim is void.
Marriage with Non-Muslim Shia Law Sunni Law
Woman Not valid Void Irregular
Man Not valid Void Irregular
Types of marriages
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The validity of a marriage depends on the conclusion of the marriage contract, no writing is
necessary while making a contract, it can be oral or written. The different types of marriages are
following:
Permanent marriages
The different aspects of permanent marriages are following:
Sahih (valid) marriage
A marriage between two parties, where all the necessary legal formalities are fulfilled is called Sahih
(valid) marriage. This type of marriage is accepted by both Shia and Sunni sects.
Characteristics of Sahih (valid) marriage
The status of husband and wife is recorded at the parties.
There exists a mutual right of inheritance between the parties.
Due to any reason such as death, divorce etc., if marriage is dissolved, then the husband is
barred from marrying her wife’s sister.
It confers upon children borne out of this wedlock, a legitimate status.
In addition to the above-mentioned terms and conditions, any terms and obligations can be
added to the marriage contract, which must not be opposed to public policy in Muslim
society.
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Characteristics of Batil (void) marriage
It is not a marriage as no legal rights and obligations occur from it.
The status of husband and wife is not confirmed by the parties.
Children born out of such marriage are illegitimate.
Both the parties are free to enter into another marriage without committing the offence of
polygamy and bigamy.
Divorce by husband
There are four ways a husband can give divorce.
Talaq-ul-Sunnat
This form of divorce is based on Muslim Personal Laws. It is further sub-divided into the following
categories:
Ahsan
Husband has to make an announcement of divorce in a single sentence when the wife is free
from the menstrual cycle.
After divorce women have to observe Iddat for a certain period of time, during which the
husband cannot indulge in any form of sexual intercourse, if he indulges then revocation of
talaq becomes impliedly revocable, otherwise, it becomes irrevocable.
This type of talaq can be pronounced even when the wife is undergoing menstruation, but for
that marriage must not be consummated between the parties.
It is the most approved form of talaq.
Hasan
It is a less approved form of Talaq Ahasan.
There is a provision for revocation of divorce.
The word talaq is to be pronounced three times simultaneously.
Three announcements should be made in the three states of purity if the wife has not crossed
the age of menstruation.
If the wife has crossed the age of menstruation, pronouncement must be made at the 30 days
interval between the successive pronouncements.
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During the period of three pronouncements, no sexual intercourse should take place, if it
happens divorce is revoked.
After completion of the iddat period, this type of divorce becomes irrevocable.
Talaq-ul-Biddat
it is this disapproved/sinful form of divorce.
It is also known as triple talaq, after pronouncing talaq three times it becomes irrevocable
immediately.
This form of divorce is only recognized under Sunni Law and not by Shias and Malikis.
Parties can remarry only after performing nikah halala by the female partner, under which she
has to marry another man and then get divorced from him.
This type of divorce is unconstitutional in India, through the judgement of the Supreme Court
in the case of Shayara Bano vs Union of India and Others.
Ila
It is a form of divorce under which the husband has the power to pronounce that he would not
indulge in sexual intercourse with his wife.
Subsequent to this pronouncement, the wife is required to observe iddat.
If the husband cohabits with the wife during this period, then the Ila is revoked.
Once the period of iddat is over, divorce becomes irrevocable.
This type of divorce is not practised in India.
Zihar
It is also constructive divorce like Ila.
In this form of divorce, the husband compares his wife with a woman who comes under a
degree of prohibited relationship, such as his mother, sister etc, and pronounces that she is
like his mother or sister.
For doing this the husband must be of sound mind and above the age of eighteen years.
The wife has the right to seek judicial remedies such as restitution of conjugal rights,
cohabitation etc., but cannot seek judicial divorce.
Husband can revoke such divorce by observing two months fast, feeding sixty people and
freeing a slave.
This type of divorce is no longer in practice.
Divorce by wife
Talaq-e-Tafweez
It is also known as delegated divorce.
The husband has the power to delegate such power to the wife, he must be of sound mind and
above 18 years of age.
This type of talaq is also called an agreement, which may be entered between the parties
before or after marriage.
If the terms of an agreement are not fulfilled, the wife can ask for a divorce.
It is the only way through which a woman can ask for a divorce.
The right of the husband to divorce his wife remains intact, it does not deprive the husband of
his right to pronounce the divorce.
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There is an offer from the wife, which is accepted by the husband.
Women are required to observe iddat after Khula.
Mubarat
It means ‘release’, it releases/discharges parties from marital rights.
Divorce is with mutual consent among parties to become free from one another.
Its formalities are the same as Khula, where there is an offer from one party and acceptance
from another.
Women are required to observe Iddat.
Divorce by judicial decree under Muslim Dissolution of Marriage Act, 1939
Lian
This type of divorce occurs when a wife is falsely charged with adultery by her husband.
She can move to court to file a regular suit for dissolution of marriage, under the Muslim
Dissolution of Marriage Act, 1939.
The ground of divorce must be a false charge of adultery on the wife, his husband.
The husband imposing charge must be sane and above 18 years of age.
Marriage is not dissolved until dissolution degrees are passed by the court, once it is passed
divorce becomes irrevocable.
The husband can prevent divorce by the withdrawal of false assertion of adultery on the wife,
before passing of the decree by the court.
Faskh
If husband and wife feel that they are not compatible together, they can file for divorce.
Section 2 of The Dissolution of Marriage Act, 1939, states grounds on the basis of which the
wife may sue for divorce.
Whereabouts of husband not known for 4 years.
Husband has failed to maintain wife for two years.
Husband is sentenced for imprisonment of 7 years or more.
Husband has failed to perform marital obligations for three years, without any reasonable
cause.
The husband is impotent.
Husband is suffering from insanity (for two years), leprosy or virulent venereal disease.
Wife being married before 15 years, rejects the validity of marriage after attaining the age of
18 years, provided marriage must not be consummated.
Husband treats her with cruelty, such as imposing physical assault. making defamatory
statements that affect her reputation etc.
Rights conferred by personal laws based on religion is not absolute. For instance, the two most
popular and important judgments of the Supreme Court in this regard are discussed hereinafter, in the
case of Mohd. Ahmed Khan vs Shah Bano, Shah Bano at the age of 62 was divorced by her husband
Mohammed Ahmed Shah, and she along with her five children were disowned and tossed out from
her marital home. When she approached Madhya Pradesh High Court to restore her maintenance
amount of rupees 200 which was halted by her husband, and to increase its amount to rupees 500,
she was divorced by her husband through instant triple talaq or Talaq-ul-Biddat, who used it as a
defence not to pay maintenance as she no longer was his wife. But the court granted maintenance to
Shah Bano under Section 125 of CrPC on the grounds that she is unable to earn and maintain herself.
Though it was against the provisions of Islamic law, Section 125 of CrPC override the personal law
and gave effect to the judgement.
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Similarly, in the case of Shayara Bano vs Union of India, Shayara Bano married to Rizwan Ahmed,
was a victim of domestic violence, while she was visiting her parents, Rizwan Ahmed sent her a
divorce letter of Talaq-ul-Biddat declaring instant divorce. She filed a petition before the Supreme
Court to declare triple talaq, nikah halala, and polygamy to be unconstitutional. Although the court
took into account only the plea of triple talaq declaring it to be unconstitutional and it also held that
until the government formulates a law regarding instant triple talaq, there would be an injunction
against the pronouncement of triple talaq by husbands on their wives.
Talaq-ul-Biddat or triple talaq is unconstitutional as it violates Article 14 of the Constitution in two
ways; firstly, it discriminates Muslim women from Muslim men on the basis of gender, as only
Muslim men have the right to declare triple talaq, and secondly, it is discrimination on the basis of
religion, women of no other religion are subject to cruelty and unjust behaviour of triple talaq except
Muslim women. Talaq-ul-Biddat also violates Article 21 of the Constitution on the grounds of the
right to live with human dignity, Muslim women are subject to derogatory and cruel behaviour of the
Talaq-ul-Biddat, which reduces their presence to mere unwanted beings in the eyes of their husband
and society. A divorce that is arbitrary, without justified reasoning and a reconciliatory process is
never allowed by the Koran. Thus, personal laws of Muslims are given prominence unless and until
they are against the right of women to live a dignified life or are unconstitutional.
Changes brought by the Muslim Women (Protection Of Rights On Marriage) Act, 2019
The Muslim Women (Protection Of Rights On Marriage) Act, 2019 brought the following changes:
Section 3- Pronunciation of triple talaq on wife by husband in any manner (including
electronic), by words either spoken or written, is void or illegal.
Section 4- Any person who pronounces talaq to his wife in a manner prescribed in section 3,
shall be subject to imprisonment extendable to 3 years or shall be liable to a fine.
Section 5- Muslim women who are being divorced can seek allowance from their husband to
maintain themselves and children dependent on them.
Section 6- Muslim women divorced by husband are entitled to seek custody of their minor
child.
Section 7- Magistrate can grant bail to the accused after hearing both the parties, if he feels
that reasonable ground exists for granting bail. The offence is compoundable and there is also
an option of compromise at the instance of a married Muslim wife, which will drop the
charges on the basis of fulfilment of certain terms and conditions.
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Conclusion
Under the Muslim Law, there are more than one form of ways through which marriage can be
solemnized and divorce can be initiated for dissolution of marriage. To cater to the needs of
changing circumstances along with Muslim personal laws certain legislations are brought by the
Government of India such as the Muslim Dissolution of Marriage Act, 1939, the Muslim Women
(Protection of Rights on Marriage) Act, 2019 etc., to govern Muslim marriage and divorce. However,
apart from these legislations and personal laws, there is a need for the Uniform Civil Code for
creating single informed laws governing all the citizens of the nation to strengthen national unity and
integrity.
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